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This month our copyright expert Eugen attended a one day conference in Brussels to keep up to date with the latest developments in Intellectual Property law. “EU copyright, quo vadis? From the EU copyright package to the challenges of Artificial Intelligence” was a one-day conference held at Université Saint-Louis in Brussels on 25th May 2018. It was organised by the European Copyright Society, which is a platform for critical and independent scholarly thinking on European Copyright Law and policy.

There were over 100 participants from almost every European country and almost every area where Intellectual Property has an important contribution: many academics and researchers, practitioners from law firms such as Allen & Overy, consultants from Deloitte, media companies such as Channel 4 Television, ARD or Google, collective societies as ZAiKS Poland and from law courts such as the Ghent Court of Appeal.

The morning session was focused on the ongoing reform of the EU Copyright, the directive proposal that will be debated in the EU Parliament on 21 June 2018. There were presentations (text & data mining, education & libraries, the newly created right for press publishers) by academics highlighting the improvements brought by this proposal and its numerous shortcomings followed by interesting debates between the audience and a group of officials from the European Commission (Copyright Unit I.2, DG CNECT) invited to explain their vision and defend their point of view. Despite this, the general opinion in the room was that the copyright landscape will be polarised between rights-holders, who’s position will be greatly strengthened and enhanced, and a strictly regulated ‘small island of free access’ limited to libraries and universities and not much in between. Some participants were so critical of this proposed directive that they label it as ‘not fit for purpose’.

In the afternoon, the speakers discussed about the looming challenges that Artificial Intelligence (AI) poses to various key notions of copyright therefore the debates were both dry and technical. One particularly interesting debate was about the (proposed) ownership of copyright in machine generated data. Some participants commented that from the point of view of the European car-manufacturers this will balance out the GDPR (which prevents them to use data generated by increasingly sophisticated automobiles) while also preventing overseas competitors to use this data when designing autonomous cars.

There was also a book launch – P.B. Hugenholtz (ed.), Copyright Reconstructed, 2018 (with contributions of five members of the European Copyright Society).

It was extremely interesting to hear the strengths and weaknesses of the forthcoming EU copyright directive and to have a fairly clear idea of what is to come. The conference being organised in Brussels (this year) ensured a wide participation which vigorously (and belatedly) tested the EU officials. It will definitely help if academics and organisations like European Copyright Society, as a part of the civil society, will be more involved in the EU legislative process.

An academic colleague of mine recently had an article accepted for publication in a journal. As usual they were emailed by the publisher who asked them to sign an Author Publishing Agreement which would transfer copyright to them. However, the author noticed that the publisher also allowed authors to retain their own copyright by instead signing a Licence to Publish.

Keep your copyright!

The researcher wasn’t sure whether to assign copyright to the publisher, or if it would be preferable for them to retain copyright. On the face of it, it seems like a no-brainer – keep your copyright rather than signing it away. This is the mantra that open access advocates have been saying for years.

BUT more importantly.

Always read the small print – or get someone else to do it for you – and understand what you are getting yourself into.

The illusion of choice

In this particular case, if you read both the standard Publishing Agreement (to transfer copyright) and the Licence Agreement (to keep copyright) with a fine-tooth comb you will find that they pretty much contain the same language verbatim. There is no practical difference between them both in the end results. Both the author and the publisher will end up with exactly the same rights for exactly the same duration. There is the illusion of choice but it literally doesn’t matter which piece of paper is signed. This is an example of Copyright Waffle and it sidetracks from the important things.